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Texas PUC Chair Nelson Warns REPs Commission Will Be Watching Behavior Closely, As PUC Allows Door-to-Door Sales To Be Verified By Portable Electronic Device Without TPV

February 7, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The Public Utility Commission of Texas adopted a final rule which allows retail electric providers to enroll customers via door-to-door sales using a portable electronic device (PED) without the requirement for a TPV or other telephonic verification that is required for other door-to-door sales, but PUC Chairman Donna Nelson warned REPs that the Commission would be closely monitoring behavior.

Nelson noted that while conducting commerce via tablet may be common, typically such purchases do not lock customers into a two-year contract.

Nelson expressed concern with compliance concerning the rules' requirement that REPs shall provide the applicant a "reasonable opportunity" to read the terms of service, Electricity Facts Label (EFL), Prepaid Disclosure Statements (PDS), if applicable, and any written or electronic materials disclosed via the portable electronic device (PED).

"I'm going to be watching that, to see if we get complaints," Nelson said

More broadly, Nelson said to the extent the PUC receives complaints arising from PED-enabled door-to-door sales, "it will not be something we look upon favorably."

Commissioner Kenneth Anderson agreed.

"I think we will need to watch this carefully as it unfolds," Anderson said

While Anderson is in favor of experimentation and new technology in the market, "we do need to watch this and Staff needs to watch this," Anderson said

Anderson noted that consumers' technological savvy varies widely.

The PUC generally adopted Staff's proposal for adoption for the PED rules without significant modification, but did tweak some language.

At Nelson's suggestion, the final rule will make explicit that, in answering customer questions concerning disclosures made through the PED, REPs shall answer "accurately and truthfully." While such accurate and truthful disclosures are a requirement that runs throughout the customer protection rules, Nelson said the PED rules would benefit from restating such obligation.

Additionally, at the request of REPs, the final rule will modify and clarify the proposal for adoption's language which had stated, "The REP or aggregator shall obtain confirmation from the applicant that the applicant is authorized to perform the enrollment and consents to the enrollment being verified using a PED."

The final language will change this requirement to be an "affirmation," to address concerns from REPs who were unclear what confirmation meant or what would constitute confirmation. Final language for this change has not yet been filed.

The proposal for adoption adopted as final by the PUC omits an earlier proposal which would have essentially indefinitely extended the rescission period for customers who did not affirm receipt of an email from the REP.

As previously reported, an earlier proposal for publication had included the provision that if an enrollment confirmation (which includes notification of the right of rescission) was, "sent by any means other than first class mail, the confirmation must allow for the applicant to confirm receipt and the three-day right of rescission period shall not begin until the REP receives the applicant’s confirmation."

Such language would have, for enrollment confirmations not sent via first class mail, extended the rescission period indefinitely in cases where the customer never acknowledges receipt of the enrollment notice, since the clock of the three-day rescission period would not start until the customer affirmed that they received the REP's enrollment confirmation notice

The adopted rules delete from the proposal for publication the language, "If the confirmation is sent by any means other than first class mail, the confirmation must allow for the applicant to confirm receipt and the three-day right of rescission period shall not begin until the REP receives the applicant’s confirmation."

The final rules, however, do retain the requirement to notify door-to-door customers enrolling via portable electronic device of the potential for an early termination fee from the customer's current REP.

Specifically, if the REP (or aggregator) provides the disclosures using a PED, the REP or aggregator shall, "advise the applicant that if the applicant is under contract with another REP, termination fees for that contract may apply."

Such advisement only concerns the potential presence of an early termination fee, and the enrolling REP is not required to determine the amount of any such fee.

The final rules also decline to extend this provision concerning the required notice of a potential early termination fee to door-to-door sales made without the use of a PED, as such recommendation for consumer advocates was outside the scope of the rulemaking

The final rules also decline consumer advocates' recommendation that enrolling REPs be required to time the switch to avoid early termination fees or provide a specific date for the switch to avoid early termination fees.

The final rules maintain the process envisioned by the proposal for publication where, for customers enrolled via PED, the customer needs to provide confirmation twice during enrollment -- first to confirm they agree to receive disclosures via the PED, and second to verify the actual enrollment.

If a REP or aggregator provides the disclosures using a PED, the REP or aggregator shall, "obtain an electronic signature from the applicant that adheres to Texas and federal guidelines or, alternatively, require unassisted direct entry of a uniquely identifiable input by the applicant affirming that the applicant has read and understands the disclosures, terms of service, EFL, PDS, if applicable, and all written or electronic materials disclosed prior to verification of authorization."

As will be modified in the final rules, REPs using a PED in door-to-door sales will be required to obtain "affirmation" from the applicant that the applicant is authorized to perform the enrollment and consents to the enrollment being verified using a PED.

Under the final rules, if the applicant consents to verification being conducted using a PED, the REP or aggregator shall:

(i) obtain or confirm the applicant’s email address or other agreed upon means of communication, billing name, billing address, service address, and name of any authorized representative;

(ii) obtain or confirm the applicant’s electric service identifier (ESI-ID), if available;

(iii) obtain or confirm at least one of the following account access verification data for the applicant: last four digits of the social security number, mother’s maiden name, city or town of birth, month and day of birth, driver’s license number or government issued identification number. For non-residential applicants, the REP may obtain the applicant’s federal tax identification number; and

(iv) obtain applicant’s electronic signature that adheres to Texas and federal guidelines or, alternatively, require unassisted direct entry of a uniquely identifiable input by the applicant matching the input obtained pursuant to paragraph (3) of this subsection [relating to authorization to receive disclosures via PED noted above] affirming that the customer or applicant is authorized to select or change REPs for the service address and authorizes the new REP to perform necessary tasks to complete a switch or move-in for the customer’s or applicant’s service with the new REP.

A door-to-door sale verified by PED will not require that the REP, or an independent third party retained by the REP, shall telephonically obtain and record all required verification information from the applicant, as will still be required for non-PED door-to-door sales

For the purpose of rules, a PED is defined as a nonstationary light-weight, electrically-powered device that is capable of communications, data storage and processing, and accessing, directly or indirectly, the REP or aggregator network. Examples of PEDs include, but are not limited to: laptop computers, tablets, tablet computers, personal digital assistants, and smart phones.

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